Karnataka High Court
Fathima Sana vs Union Of India on 11 July, 2022
Bench: M.Nagaprasanna
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CRL.P No. 5467 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5467 OF 2021
BETWEEN:
FATHIMA SANA
W/O FAROOK T.P.,
AGED ABOUT 42 YEARS
R/AT NO.10-14-644
HAZAR HOUSE
ANSARI CROSS ROAD,
BUNDER, MANGALURU - 575 001.
...PETITIONER
(BY SRI. DHANANJAY KUMAR., ADVOCATE)
AND:
UNION OF INDIA
REP. BY I.O., NARCOTICS CONTROL BUREAU
MHA GOVERNMENT OF INDIA
Digitally signed
by PADMAVATHI BENGALURU ZONAL UNIT
BK
Location: HIGH
COURT OF
BENGALURU - 560 063.
KARNATAKA
...RESPONDENT
(BY SRI. MADHUKAR M.DESHPANDE., ADVOCATE)
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CRL.P No. 5467 of 2021
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
08.06.2021 PASSED IN CR.NO.126/2020 ON THE FILE OF
PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU REGISTERED BY THE RESPONDENT POLICE, FOR
THE OFFENCE P/U/S.8c, 20(b)(ii)(b) OF NDPS ACT, 1985.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an
order dated 08.06.2021 passed by the Principal District and
Sessions Judge and Special Judge, Mangaluru in Crime
No.126/2020, wherein the petitioner is alleged of offences
punishable under Sections 8(c), 20(b)(ii)(B) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS
Act').
2. What drives the petitioner to this Court is rejection
of an application filed under Sections 451 and 457 of Cr.P.C.,
seeking release of the vehicle involved in the alleged crime.
CRL.P No. 5467 of 2021
3. The learned Special judge by his order dated
08.06.2021 holds that the Court has no power to release the
vehicle and therefore, turns down the application.
4. An identical issue had been referred before the
Division Bench of this Court in Crl.P.No.3571/2021 and
connected matters, wherein this Court by its order dated
17.05.2022 has held as follows:
"Thereby, the law laid down by the Hon'ble
Supreme Court in Sunderbhai Ambalal Desai's case
stated supra will apply to the vehicles seized under
the NDPS Act as well. Any contrary view taken by
the Courts of law would be against the interest of
the owner of the vehicles, the public at large and
the State.
48. By virtue of Section 36-C of the NDPS Act,
"Save as otherwise provided in this Act", the
provisions of the Cr.P.C. have been made applicable
to the Special Court constituted under the
provisions of the NDPS Act by Armendment Act
No.2 of 1989 with Simu effect from 29.5.1989.
"Save as otherwise provided in the Act", employed
in Section 36-C of the NDPS Act, is indicative
of/reflection of the word "exception" intended to
exclude some provisions of the Cr.P.C like Section
360 Cr.P.C. etc., which have been expressively
excluded by the NDPS Act by Sections 32A and 33
of the NDPS Act. As such, the above stated phrase
has qualified the operation of the Cr.P.C. in the
proceedings before the Special Court to the extent
provided in the NDPS Act. Once the Code of
Criminal Procedure has been made applicable, the
CRL.P No. 5467 of 2021
provisions of the Cr.P.C. contained in Sections 451
and 457 of the Cr.P.C. would automatically be
attracted. As such, with effect from 29.5.1989, the
Cr.P.C. as a whole, subject to the exception craved
out as noticed herein-above, has been made
applicable to the proceeding before the Special
Court (NDPS) and therefore, application under
Sections 451 and 457 of the Cr.P.C. for interim
custody of the vehicle seized_in commission of
offence punishable under the NDPS Act would be
maintainable and the Special Judge (NDPS) is
empowered to consider the application under
Section 451/457 of the Cr.P.C. on merit.
58. In the judgments relied upon by the
learned Counsel for the respondents in the case of
Shajahan -vs- Inspector of Excise and Others
reported in 2019 SCC OnLine Kerala 3685
(DB) (paragraph-3) and Union of India -vs-
Mohanlal and Another reported in (2016)3
SCC 379, there was no occasion to consider the
application for release of the interim custody of the
vehicle (conveyance) and in that view of the
matter, the said judgment relied upon by the
learned Counsel for the respondents to the effect
that Drug Disposal Committee has power and not
the Magistrate or the Special Court under the NDPS
Act, have no application to the facts and
circumstances of the present petitions.
XI Conclusion
59. For the reasons stated above, we answer
the Reference as under:
i) The Magistrate or the Special Court is
conferred with the power/jurisdiction to
consider the application for interim consider
of the conveyance/vehicle under the
provisions of Sections 451 and 457 of the
CRL.P No. 5467 of 2021
Code of Criminal Procedure in cases arising
out of the provisions of NDPS Act; and
ii) The Drug Disposal Committee constituted
under the Notification dated 16.1.2015 issued
by the Central Government under the
provisions of Section 52A of the NDPS Act has
no authority to consider the application for
release of interim custody of the
conveyance/vehicle;
60. Place the matters before the learned
Single Judge having roster to dispose of the same
on merits and in accordance with law in the light of
the decision on the reference made by this Court
stated supra with prior approval from the Hon'ble
Chief Justice."
Therefore, in the light of the order passed by the Division
Bench (supra), the Special Judge has power to consider such an
application for release of vehicle under Sections 451 and 457 of
the Cr.P.C in cases arising out of the provisions of the NDPS
Act.
5. For the aforesaid reasons, the following:
ORDER
i. Criminal Petition is allowed.
CRL.P No. 5467 of 2021
ii. The impugned order dated 08.06.2021 passed by
the Principal District and Sessions Judge and
Special Judge, Mangaluru stands quashed.
iii. The matter is remitted back to the hands of the
learned Special Judge to consider the application
filed under Sections 451 and 457 of the Cr.P.C. on
its merit.
Ordered accordingly.
Sd/-
JUDGE
BKP
